surveillance

04/12/2017

America has not heard from Barrack Obama since President Trump slandered him, claiming he had illegally tapped Trump Tower during the 2016 election campaign. Trump also tweeted that this was politically motivated, labelling Obama as a bad or sick guy. He equated the supposed occurrence with Nixon and Watergate, and McCarthyism. All of this was said or tweeted without supporting evidence by Trump or his staff. In fact, Trump did not bother to consult members of his intelligence agencies to learn whether his concerns were valid. James Clapper, the former Director of National Intelligence, and James Comey, the head of the FBI, have denied that any wiretapping occurred. And an associate of Obama declared the claims were definitely false. According to the former president’s spokesman, neither Obama nor any member of his administration ever ordered surveillance of any American citizen. Subsequently, Trump and his minions have said the assertions of wiretapping were not meant to have been taken literally, but included surveillance in general.

For surveillance of an American citizen to occur legally, proposing officials need to show probable cause that the target is an agent of a foreign power and gain approval from a FISA (Foreign Intelligence Surveillance Act) court. Though American citizens can be picked up incidentally by surveillance techniques when an alien agent is being recorded, the identity of the citizen cannot be released without approval. Trump has also claimed that Susan Rice, Obama’s intelligence advisor, unmasked the identities of members of his campaign and advisory teams illegally. Former intelligence personnel again rejected Trump’s assertions, saying that Rice’s actions were within the boundaries of her purview as Obama’s intelligence advisor.

Trump reported that his tweets and comments about Obama were made after he received information from ‘reliable’ sources, though his only known ‘authority’ may have been Judge Napolitano on the Fox Network. Fox has disclaimed any knowledge of supporting information and sanctioned Napolitano for several weeks. The charges Trump made against Obama are quite serious, accusing him of criminal acts. A number of political analysts believe Trump’s statements were meant to be a smoke screen, shifting attention from the multiple investigations of Trump and his team’s possible collusion with Russia during the election. His emphasis on leaks from the White House and government agencies is also thought to be a diversion to deflect scrutiny of Trump’s Russian ties.

Though both Democrats and Republicans have rebuked Trump for his comments, he continues to focus on the Obama surveillance issue (which incidentally is believed true by most of his Republican base). Trump has still not offered proof that any illegal surveillance of him and his cohorts was done while Obama was in office. However, Trump focuses on any bit of information originating from any source that tends to provide support to his allegations.

Do Trump’s assertions rise to the level of libel or slander? The basic standard employed, even in regard to a public figure, is that the statement made was false and that the person making the statement was aware that it was false or reckless. In addition, did it harm the reputation of the individual targeted and was there intent to do so. There is little question the allegation was false and if Trump did not have proof when he made it, he had to know that it was false and reckless. It certainly damaged Obama’s reputation and there was undoubtedly intent to do so, as Trump’s comments during the campaign tried to do. Trump himself has threatened suit or actually sued people in the past who he felt defamed him, and there have been numerous suits against him, so it would probably not surprise him if he were sued.

The issue of whether or not a president has immunity from civil suits during his or her time in office, seems to have been settled when Paula Corbin Jones sued Bill Clinton for actions by Clinton prior to his presidency. However, the president does have immunity if acting in an official capacity or as part of his official duties, as decided by the Supreme Court in Nixon v. Fitzgerald in 1982. The defamatory statements Trump made against Obama were certainly not part of his official duties. So there would not seem to be any legal impediment to Obama suing Trump for slander. Then why hasn’t he as the injured party done it? Perhaps he believes it is beneath his dignity to go after Trump, or doesn’t want Trump distracted from his presidential duties. And what would it get Obama anyway?

Obama could sue for a nominal amount, simply to force Trump to show what proof he has to back up his statements. Or he could sue for a large amount and donate the sum to a charity or charities. Perhaps the suit would bring an apology from Trump and an admission that he was wrong, in which case Obama would drop the suit, though an apology seems unlikely. In any case, it might teach Trump a lesson that his unrestrained tweeting has to stop, and that he cannot make false statements without proof. However, given Trump’s narcissism, he would likely deny his culpability and find a way to blame someone else. Still, Obama has been defamed by his successor and should take steps to punish him.